In the last few months, Chief Justice of India (CJI) TS Thakur has time and again reiterated the need for expediting the appointment of judges to the higher judiciary. On more than one occasion, he had reprimanded the Central government for "sitting on the appointments" and warned it against "bringing the entire system to a grinding halt".

According to an Indian Express report, the Supreme Court (SC), in a serious indictment of the Centre, had asked if the government wants the entire judicial system to be “locked out”, and categorically stated that it “cannot allow the executive to decimate the system” by what it called was its “inaction, inefficiency or unwillingness” to appoint judges.

The ongoing tussle between the apex court and the Modi government has reached an impasse and the bone of contention is the Memorandum of Procedure (MoP) for the appointment of judges.

After a SC judgment last year struck down the National Judicial Appointments Commission (NJAC), meant to put a new system in place for the appointment of judges to the higher judiciary, it asked the government to deliberate upon an MoP that would provide all the rules and procedural aspects involved in the appointment of judges.

Chief Justice of India TS Thakur. Image courtesy: CNN-News18

While the government did come up with a draft MoP, several of its provisions were seen as a direct attack on the Independence of the judiciary. One crucial point among them being the power vested with the executive to reject any name recommended for elevation to the bench on grounds of national security.

While the deadlock continues, the large number of vacancies in various high courts and the Supreme Court has been flagged by the CJI as a major roadblock in dispensing speedy justice to the people.

According to the report, the bench, led by Thakur, highlighted the fact that out of a sanctioned strength of 160 judges, only 77 were currently appointed in the Allahabad High Court.

“In the Karnataka High Court, half the courtrooms are locked because there are no judges. There was a time when you had no courtrooms for judges and now most of the courtrooms are locked. You should very well have the whole institution, justice locked out,” the bench stated, as reported by the Indian Express.

According to the Department of Justice, of a total approved strength of 1,079 high court judges, 461 positions are vacant. Currently, there are five vacancies in the Supreme Court itself.

A pertinent question to be raised here is that while the current deficiency is projected as the result of the recent deadlock over the MoP, the data speaks otherwise.

According to sources, during the last 10 years, the number of vacancies in the high courts has varied from 265 to 280. Similarly, the working strength of judges in the high courts has remained almost the same, around 600. The current working strength is 620. Further, 173 new posts were created in the last two years. This has added to the vacancies in the high courts.

During the period from 2009-2014, only 20 new posts of high courts judges were created, whereas, during 2015 and 2016, 173 new posts were created.

According to sources, the average annual rate of appointment of judges in the high courts has not declined in the last two years, even though no new appointments were made during April-December, 2015, as a result of the NJAC hearing. If that period is excluded, the average annual rate of appointment increases to 63 percent (from 74 to 121 per year).

Now let us consider the contention over the MoP. According to sources, the law ministry wants the reasons for rejecting the candidature of a person in writing, as it "will make the process fair, just and transparent".

In September, reports emerged that Justice J Chelameswar of the SC had decided not to participate in the collegium meetings. Justice Chelameswar was the sole dissenting voice in the NJAC judgment and had observed that: "Transparency is an aspect of rationality. The need for transparency is more in the case of the appointment process. Proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks."

In this context, any deliberation to make the appointment system fair and transparent is the need of the hour and it will be possible only if both the stake holders trust each other in this endeavour, which seems to be missing currently.

While many of the constitutional experts that Firstpost spoke to maintain that the independence of the judiciary should not be compromised at any cost, they also hold the view that the collegium system is not perfect and needs to be reformed.

The current process does have certain shortcomings. According to sources, there have been several instances when the High Court Collegium had recommended certain number of candidates for appointment as judges, the Supreme Court Collegium had undertaken consultations and exercised due diligence which led to the exclusion of certain recommendees. By the time the final proposal was made, the number had reduced drastically.

According to sources, a case in point is the Allahabad High Court where the HC Collegium had recommended 19 names but finally the SC Collegium had recommended only eight names.

In another instance mentioned by the sources, in the case of the Karnataka High Court, the HC Collegium had recommended 10 names against 10 vacancies, but only two names were recommended by the SC Collegium. In another proposal, relating to the Rajasthan High Court, the HC Collegium had recommended 10 names, but the SC Collegium finally recommended only four.

In order to assist the SC Collegium and HC Collegium, a committee has been proposed. This committee is intended to assess and evaluate candidates for the consideration of the collegium. The collegium will, however, not be bound by the committee’s recommendations.

The Constitution (Article 124(2)) also provides for a wider consultation. Though the other judges can suggest names, the final decision to recommend candidates will always rest with the SC Collegium. In this regard, the government had insisted on the inclusion of this provision in the revised MoP.

These are some of the aspects that need to be seriously looked into and for that, a wider engagement between the executive and the judiciary is needed.

According to an Indian Expressreport, the persistent appeals and reprimands by the CJI seem to have put the government machinery into motion. “Brushing aside its objections to the two names, the Centre has cleared the deck to elevate five serving judicial officers as judges in the Delhi High Court,” it says.

While the government’s decision to speed up the appointments is laudable, it can be only seen as a short-term outcome of the CJI’s assertiveness. What is even more important here is that that both the pillars of the government should use this thaw as an opportunity to deliberate upon instituting a fair and free system of appointments, acceptable to all, so that in future a deadlock such as this can be voided.